5 Kan. App. 300 | Kan. Ct. App. | 1897
The determination of this case involves the examination of one question. Did the plaintiffs show such a joint interest in the subject-matter and relief demanded as to entitle them to maintain a joint action? Upon an examination of the evidence in this case, we find that the plaintiffs in error made no joint payment of interest; they had no common fund, and the several payments were made by each one individually from her individual money.
“ In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal*302 representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same ; provided such action is commenced within two years from the time the usurious transaction occurred. § 5198, Rev. Stat. U. S.
It will be observed that the penalty for illegal interest is recoverable only by the person by whom it has been paid, and the liability of the receiving bank is solely to such person. One of the joint makers of a note on which illegal interest is charged, cannot recover the penalty from the bank where the illegal interest was paid by the other maker. This question was decided by the Supreme Court of this State in National Bank v. Rowley (52 Kan. 394). Mr. Justice Johnston, delivering the opinion, said:
“The liability, however, is to the person who paid it. The penalty can only be enforced in the manner and under the circumstances provided in the act of Congress, which provided that the right of recovery rests only in ‘ the person by whom it has been paid, or his legal representatives.’ From the evidence, it appears that Rowley and Groves were joint makers of the note upon which the illegal interest was charged and paid. While the loan was made to Rowley, both of them were liable upon the note, and the bank, at its option, might have brought an action against one or both of them. The court has found that Groves, and not Rowley, paid the illegal interest, and that the payments were made by Groves out of his own money. The money having been paid by him, the liability arises in his favor, and no recovery can be had except by him or his legal representatives.”
Under the evidence in this case, showing separate payments, the statutes confers upon the parties separate rights ; that they may have paid equal amounts cannot change the rule. The cause of action accrues to the one paying the unlawful interest. That one
The judgment of the trial court will be affirmed.
